Intellectual Property | Real Estate | Technology | Software

Copyright Infringement

Overview of our Federal Copyright & Software Law Practice Area

Software lawyer California

Our copyright & software law services – Top 12 things we can do for you or your business!

1.   You want to protect your book, music, art, photos, film, videos, song, website pages, screenplay, text, dance, textbooks, fonts, software or other creative works with federal copyright protection or need right of publicity related agreements.

2.    Your business is based in another country and you want intellectual property protection for your copyrighted works in the United States;

3.    You want to use the copyrighted or trademark assets of another person or company and need help obtaining the proper licensing rights;

4.     You need an intellectual property firm to serve as your internet, new media, DMCA agent, social media counsel (“outside counsel”) or need to respond to a DMCA subpoena;

5.     You need to file or defend a copyright case (ex. willful infringement or DMCA litigation or Bittorent illegal download), or need an Etsy IP lawyer, or need IP counsel for mediation or arbitration or dealing with Kodi or firestick streaming video legal issues or CNC Mastercam or Autodesk lawsuit;

BONUS: Click here for sample pleading – Answer to complaint for copyright infringement with Affirmative defenses

6.   Your business is facing a software licensing audit, Microsoft license verification – SAM AUDIT, Autodesk audit, Business Software Alliance, Microsoft CAL licensing, or SIIA compliance review;

7.    You need to help trace and collect royalties owed for uses of your copyrighted works;

8.   You or your business needs “fair use” or parody analysis or dealign with “first sale doctrine” issues of online resellers

9.   You need a copyright “chain of title” reports, character reports and title reports;

10.  You are developing software and need an:

(a)  Independent contractor development agreement (possibly with a non-compete clause);

(b) “Work for hire” agreement,

(c)  Copyright assignment contract,

or

(d)  End-User License Agreement (EULA) and/or other type of technology contracts. (we can draft and review)

11.  Tattoo / body art litigation

12.  Infringement of Jewelry Designs (ex. Etsy account take down cases)

Attorney Steve explains how to search U.S. Copyright registration records online

copyright clearance lawyer

VIDEO:  Click on the picture above to learn how you can search for copyrighted works online (for example if you are trying to license for a derivative work, or to seek “clearance” to use their copyrights, or to publicly perform a song for example).  This is a good place to start.  Make sure to SUBSCRIBE to our channel to keep our intellectual property videos coming your way when we launch new ones.  We have over 2,500 people enjoying our videos each month.  Hop on the train!!  Simply click on the RED “V” for Victory when the video pops up.

Introduction

We can help your business protect and enforce copyrights and represent your interests as either a Plaintiff or Defendant in a federal copyright lawsuit, arbitration or mediation.

In addition, our federal copyright lawyers can also help with drafting or responding to trademark or copyright “cease and desist” letters, DMCA “take-down” noticesBSA software licensing disputes, SIIA software audits, Microsoft software audits (ex. CAL license shortages), Autodesk audits, DMCA litigation (and serve as your DMCA agent) to seek “safe harbors” under Federal Copyright law which can limit your legal liability and exposure to expensive copyright lawsuits.

We can also help software companies, innovative business organizations, creative artists and other entrepreneurs protect and enforce their copyrightable content (see list below of types of content that may be at issue) and represent them in copyright infringement matters, royalty disputes, and software piracy litigation for the illegal and unauthorized use of images, photos, eBooks, videos, software (and other digital content listed below).  Some cases can be taken on a contingency fee basis, see below.  In these types of cases, there may be significant monetary damages at issue.

We are skilled counselors, negotiators and litigators.  Our goal is to protect your business and enforce intellectual property rights and defend companies and individuals from abusive copyright trolls & trademark bully tactics, and to further the interests of artists, authors, photographers, videographers, film makers, cartoonists, and other copyright holders.

We can also represent officers and directors facing federal copyright infringement liability, usually this is in response to a SIIA software audit, BSA software licensing issue, or an Autodesk audit (impacting mostly architects and engineers who use AutoCad software).

The following is a brief overview of copyright law, and this is by no means an exhaustive coverage of this very important area of the law.  Many different types of legal issues can arise in a “digital world” with the pervasive presence of copyright law.  If you need counsel, please fill out the contact form below to have one of our intellectual property attorneys contact you, normally within the hour.

Does Bittorent p2p (peer-to-peer) file sharing create copyright issues?

Copyright attorney for p2p illegal videos

Video Blog: Click on the picture to watch the video.  Make sure to SUBSCRIBE to free legal video updates so you can stay in the know!!  Simply click on the Red “V” for Victory!

What is copyright?

Copyright law is actually mentioned in the constitution.  The United States Constitution States:

“Congress shall have Power …To promote the Progress of Science and useful Arts, by securing for limited Tımes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  See United States Constitution, Article I, Section 8

 Copyright law is a federal law that protects “creative works of authorship” that are “fixed in a tangible medium of expression.”  There are no special requirements to obtain a copyright, and the protection attaches AUTOMATICALLY upon creation of the creative work.  Most of us are familiar with what a copyright is.  Common examples of a copyright include:

The list goes on an on.  Basically ANYTHING that is creative and put into a tangible form is subject to federal copyright protection.  We can help you get your copyrights registered at a very low flat rate.

What is a Creative Commons copyright license?

creative commons lawyer

VIDEO:  Attorney Steve explains the basics you need to know about Creative Common licensing.  Click on the RED “V” to subscribe to our channel!!

Does it violate Federal Copyright laws to use Dubsmash?

Dubsmash explained by copyright attorney

Bonus materials:  Click on the picture above to hear Attorney Steve discuss “Dubsmash” Legalities.  Many copyright scholars believe using the application is protected under federal copyright “fair use” laws, or protected by the first amendment or parody.  What do you think?  Click on the Red “V” on the video to SUBSCRIBE to our Business and Real estate law Youtube channel!  We are approaching nearly 1,300 subscribers and moving fast!  Know more than your friends!

We can help Plaintiffs and Defendants in Third Party Liability Claims for Copyright Infringement

Third party claims are where you seek to hold one party liable even though the are not the actual party that did the infringement.  Three theories you might see are:

  1.  Contributory infringement
  2. Vicarious infringement
  3. Inducing infringement 

Will your law firm take my case on a contingency fee basis if someone is selling our copyrighted software on eBay, Etsy or Amazon.com?

Maybe.  Here are a few important questions that we will ask in regard to a case like this.

  1. Did you register your copyrights with the U.S. Copyright office (not required, but an important question)
  2. Who is the legal owner of the software or other copyrighted content?
  3. Who is selling the pirated software?  Is it a big company or small company?
  4. Do you have any idea whether or not they are selling a lot of copies, or only a few?
  5. Have you sent a DMCA or infringement take down notice to Etsy, Amazon, eBay or other online company?

Contact us at (877) 276-5084 to discuss your case with a lawyer.  It is probably best not to say too much, or put anything in writing until you speak with a copyright lawyer. Once you “lock yourself into a position” it can be tough to undo that.

Copyright law resources (helpful articles)

1.  What is willful copyright infringement?

2.  Can you recover Defendant’s profits in a copyright infringement lawsuit?

3.  Copyright “one satisfaction rule” explained

4.  The Copyright “misuse” defense explained

5.  What remedies can a Plaintiff seek in a federal copyright infringement lawsuit?

6.  Need to know caselaw for software infringement lawsuits

7. Help, someone has stolen and infringed my eBook!

8. How to survive a BSA software audit

9.  Autodesk audit survival guide

10.  Can officers and directors of a company be held liable for copyright infringement?

11.  Common copyright defenses

12. Defenses to a Malibu Media adult porno copyright lawsuit

13.  Is an employer liable for the copyright infringement or software piracy of employees?

14.  Copyright and the SIIA

15.  How to protect your software code with copyright

16.  Overview of IBM software audit defense

17. Copyright holders must consider “fair use” defenses before initiating DMCA takedown notice for infringement

Can I copyright my name?

No.  A personal name cannot be copyrighted.  In some cases, a trademark can be obtained for a name that identifies the sources of products or services.  Don’t forget, in some cases you can trademark your nickname!

Can I copyright my company logo?

Yes.  It is common for a corporation or business to file for copyright protection in its corporate logo. For example, companies such as Microsoft, Oracle, IBM, Facebook, Twitter, Amazon.com, Linked-in, Autodesk, Google and Youtube would each likely have federal copyright protection for their corporate logos to prevent other companies from copying it.  If another entity substantially copies their logo, particularly in a way that is likely to confuse consumers, or else tarnish the corporate brand, some of the giant software and technology companies would likely take legal action including sending the offending company a cease and desist letter or filing a lawsuit for copyright infringement if the matter cannot be resolved.  Keep in mind, sometimes defenses may be available, (such as the parody defense), and sometimes the copyright or trademark owner (if the brand name or slogan is involved) is simply over-aggressive in enforcing their rights (i.e. being a “bully”) and these cases can be defended.  One of the defenses being to file for Declaratory Judgement in a federal court.

Is using software without the proper licenses a copyright infringement?

Yes.  If you are using some other companies copyright protected products (ex. Microsoft, Adobe Autodesk or some other companies copyrighted software) and you are not paying for it, or not paying for the proper number of licenses you could be held liable for willful copyright infringement.  This can include legal exposure to both directors and officers of the company.  We have experience resolving BSA software licensing audits and we are familiar with the threats that you can expect to receive from some of the more seasoned intellectual property law firms out there.

Another problem can arise where there is pirating of software, films, songs or copyrighted games without paying for it (kids often do this not realizing it is potentially a federal copyright crime to download protected content without paying for it).  This can be considered a form of copyright infringement and could land your company or business in a federal lawsuit.  In some cases, it might be liable to hold the parents liable for the copyright infringement of their kids.

What is copyright infringement?

Copyright infringement results where a person or business violates one or more of the “bundle of rights” enjoyed by all copyright holders (see below).  In order to prove a copyright infringement, normally a Plaintiff needs to show that the Defendant had “access to the copyrighted work” and “substantially copied it” and has no other recognized legal defenses.

What are the “bundle of rights” that copyright holders enjoy?

Copyright holders have the the following exclusive rights:

(1) to reproduce the copyrighted work;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.

What is the deadline to file a copyright infringement lawsuit under the Federal Copyright Act statute of limitations?

Under 17 U.S.C. 507 the statute of limitations for federal copyright infringement claims (civil or criminal prosecutions) is three years from the date of the last infringing act.  In some cases, there might be a legal argument for “equitable tolling” of the statute.

What is a “work for hire” under Federal Copyright Law?

The Copyright Act carves out an exception for “works made for hire.” 17 U.S.C. § 201(b). Generally, copyright ownership vests in the author of a work; however, where a work is made for hire, the author’s employer is considered the author and owns the copyright in the work, unless there is a written agreement to the contrary.   See Ulloa v. Universal Music and Video Distribution Corp. (S.D.N.Y. 2004) 303 F.Supp.2d 409, 414.  Disputes can arise where one person created a copyrightable work (let’s say for example an employee produces a corporate training video, or manual) while working for an employer, then later after they are terminated or leave the company they try to copyright the work they created an exploit it for profit in the marketplace.  The former employer, once they learn the former employee is making money off the work, may get a little huffy and initiate legal action.
If you believe there is a “work for hire” issue, contact us.  In my opinion, all employee manuals, independent contractor agreements and employment contracts should address who owns the intellectual property created during the term of the working relationship.  We can help draft these agreements through our ZipCounsel program.

What is the general test for copyright infringement?

To establish a successful copyright infringement claim, Shaw must show that he owns the copyright and that defendant copied protected elements of the work. Id. Because, in most cases, direct evidence of copying is not available, a plaintiff may establish copying by showing that the infringer had access to the work and that the two works are substantially similar.  See Shaw v. Lindheim (9th Cir. 1990) 919 F.2d 1353, 1356

What are the damages for copyright infringement?

Copyright infringement penalties

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There are a wide range of damages that may be recovered in a successful copyright infringement lawsuit.  In Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc. (9th Cir. 1985) 772 F.2d 505, 512 the court discussed general damages that could be awarded in a federal copyright lawsuit:

“The Copyright Act of 1909 provided three forms of recovery to a plaintiff whose copyright had been infringed: actual damages, infringer’s profits, or statutory “in lieu” damages. The Act provided for recovery of “such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such an infringement….” 17 U.S.C. § 101(b) (1970). The Act further provided that a court could award “in lieu of actual damages and profits, such damages as to the court shall appear to be just” within certain prescribed minima and maxima.  A court making an award for copyright infringement must, if possible, determine both the plaintiff’s actual damages and the defendant’s profits derived from the infringement. Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th Cir.1977) (Krofft I ). In this circuit, we have construed section 101(b) of the 1909 Act as allowing recovery of the greater of the plaintiff’s damage or the defendant’s profits.

What are actual damages in a copyright case?

As one Court put it:
“Actual damages” are the extent to which the market value of a copyrighted work has been injured or destroyed by an infringement.  See Nimmer on Copyright § 14.02, at 14–6 (1985). In this circuit, we have stated the test of market value as “what a willing buyer would have been reasonably required to pay to a willing seller for plaintiffs’ work.”

What are statutory damages?

Statutory damages are intended as a substitute for profits or actual damage. When injury is proved but neither the infringer’s profits nor the copyright holder’s actual damages can be ascertained, an award of statutory “in lieu” damages is mandatory. Russell v. Price, 612 F.2d at 1131–32; Pye v. Mitchell, 574 F.2d 476, 481 (9th Cir.1978); Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1178–79 (9th Cir.1977) (Krofft I ). But if either profits or actual damages or both can be ascertained, the trial court has discretion to award statutory damages.
“We hold that, after Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994), an award of attorney’s fees to a prevailing defendant that furthers the underlying purposes of the Copyright Act is reposed in the sound discretion of the district courts, and that such discretion is not cabined by a requirement of culpability on the part of the losing party.  See Fantasy, Inc. v. Fogerty (9th Cir. 1996) 94 F.3d 553, 555.  We have discussed willful copyright infringement here.
To learn more about DAMGES for infringement watch our VIDEO.

Is a copyright lawsuit filed in federal court?

Copyright law is the exclusive jurisdiction of the federal court, and your federal copyright lawsuit would be heard in a federal court of law.  This is written into the United States Constitution.  For example, your case could end up in the Northern District court of California.  This is near the Silicon Valley, San Jose, Palo Alto and San Francisco where many software technology companies are located.

What are the defenses to copyright infringement?

One of the main defenses is the “fair use defense.” Congress took notice of case law recognizing the defense of fair use by incorporating it in the Copyright Act of 1976.  The Act offered, as an explanatory guideline, a nonexclusive list of the factors that courts had found useful in evaluating fair use defenses:

(1) the purpose and character of the use;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
To see a detailed list of potential defenses check out this VIDEO or see this blog.

Fair use guidelines

By offering these criteria merely as guidelines, Congress expressed its intention to allow courts to continue developing the fair use defense according to the common law tradition. Indeed, the legislative history disavows any ‘disposition to freeze the doctrine in the statute.’  Fair use decisions in individual cases thus do not necessarily require consideration of all the traditional factors listed in the Copyright Act. Consequently, courts should employ these criteria selectively in determining whether protecting particular uses would promote copyright law’s purpose of maximizing the public’s access to information.
The determination of whether or not a use of a copyrighted work is a “fair use” or not will require a close look at the facts by your copyright law firm.  Note, companies should closely consider the fair use defense before sending a DMCA “take down” notice.

Parody Defense

Another defense is the “parody defense” which is not always easy to establish, but deals with first amendment free speech considerations.  For example, if you parody a song or piece of artwork, you might have a “free speech” defense to infringement.  But be careful, as we say, parody is like shooting at the king, you better not miss.

First Amendment Explained

Exceptions to free speech

Bonus materials: Click the picture below to watch Attorney Steve explain how to Dazzle your Peeps with more knowledge about the First Amendment than they have!!  Make sure to Click on the RED “V” to subscribe to our business and real estate law channel.

What is Copyright Parody Defense?

This defense has been characterized as follows:

“This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court’s equal division. Benny v. Loew’s Inc., 239 F.2d 532 (CA9 1956), aff’d sub nom. Columbia Broadcasting System, Inc. v. Loew’s Inc., 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958). Suffice it to say now that parody has an obvious claim to transformative value, as Acuff–Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107. See, e.g., Fisher v. Dees, 794 F.2d 432 (CA9 1986) (“When Sonny Sniffs Glue,” a parody of “When Sunny Gets Blue,” is fair use); Elsmere Music, Inc. v. National Broadcasting Co., 482 F.Supp. 741 SDNY), aff’d, 623 F.2d 252 (CA2 1980) (“I Love Sodom,” a “Saturday Night Live” television parody of “I Love New York,” is fair use); see also House Report, p. 65; Senate Report, p. 61, U.S.Code Cong. & Admin.News 1976, pp. 5659, 5678 (“[U]se in a parody of some of the content of the work parodied” may be fair use).  See Campbell v. Acuff-Rose Music, Inc. (1994) 510 U.S. 569, 579-80 [114 S.Ct. 1164, 1171-72, 127 L.Ed.2d 500].

 As the old saying goes “Parody is like shooting at the king – you better get it right.”

Important Blogs

  1.  What are the rights of federal copyright holders? 

Federal Copyright Law Resources

1.  United States Copyright Office

2.  Stanford Fair Use Project

3.  Creative Commons

4.  Copyright Clearance Center

5.  Digital Millenium Copyright Act

What is the largest copyright infringement verdict of all time?

Contact Us

If you have a copyright or software infringement legal issue and need to retain counsel to represent your interests, contact us to discuss before speaking with any opposing parties.  Our firm can be reached at (877) 276-5084.  You can also fill out the form below to have one our copyright litigation lawyers contact you.  We have offices in San Francisco, Los Angeles (Beverly Hills), San Diego, Orange County (Newport Beach) and Phoenix, Arizona.

We represent businesses and creative entrepreneurs across the spectrum of federal copyright including DMCA take down and response, copyright licensing disputes, royalty disputes, software licensing defense, piracy and BSA audits.  We offer flexible fee structures to fit your budget.

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